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Crossing Over, Inc. v. City of Fitchburg

Superior Court of Massachusetts, Worcester

January 29, 2019

CROSSING OVER, INC. & others[1]


          Rosemary Connolly, Justice

          Crossing Over, Inc. (Crossing Over) and Massachusetts Alliance for Sober Housing, Inc. (MASH) move for judgment on the pleadings on only two counts: Count I: judicial review of the Automatic Sprinkler Board’s decision under G.L. c. 30A, § 14; and Count II: injunctive relief to prevent the defendants from enforcing the sprinkler requirements under G.L. c. 148, § 26H.[3] Specifically, they seek judgment in their favor on an appeal of an Automatic Sprinkler Appeals Board (Board) decision under G.L. c. 30A, § 14 and their request for an injunction under G.L. c. 40A, § 3, and the federal Fair Housing Act. The defendants, the Board, the City of Fitchburg (City), and the City’s fire prevention bureau (Bureau), oppose the motion. For the reasons discussed below, the plaintiffs’ motion is DENIED.


          The following facts, obtained from the parties’ pleadings, are not in dispute.[4] Crossing Over is a nonprofit organization that operates a sober house for individuals recovering from alcohol and drug addiction. It is located within a residential neighborhood at 44 Mount Vernon Street, Fitchburg, Massachusetts (the Property). Theodore Bronson (Bronson) owns the Property and rents it to Crossing Over for $ 1, 400.00 per month. Crossing Over, in turn, provides communal housing to eight unrelated individuals, who are in recovery, at a weekly cost of $ 130.00 per person.[5] This weekly charge covers lodging, utilities, the assistance of an on-site program manager, several drug tests per week, and breakfast and lunch. Individuals in recovery must follow certain rules imposed by Crossing Over to continue living at the Property. Those rules include remaining drug and alcohol free and participating in certain treatment or counseling.

          On March 8, 2017, the City fire department sent a letter to Bronson and Crossing Over’s program director, Donald Flagg, requiring that automatic sprinklers be installed at the Property, deemed a lodging house, in accordance with G.L. c. 148, § 26H (automatic sprinkler law or sprinkler law).[6] By way of further background, the City adopted the state automatic sprinkler law in 2002. The relevant provision of that law states that when a city accepts the provisions of the law then "every lodging house or boarding house shall be protected with ... automatic sprinklers in accordance with the state building code." G.L. c.148, § 26H.

          Bronson and Crossing Over replied with a letter asserting that they should not be required to install sprinklers in light of state and federal anti-discrimination laws, to which the fire department responded.[7] Bronson and Crossing Over then filed an appeal of the fire department’s decision with the Board on April 20, 2017. After a hearing held on June 14, 2017, the Board issued a written decision one month later upholding the fire department’s determination.

          The Board concluded that the Property is subject to the state sprinkler law, because Crossing Over’s operations render it a "lodging house" as defined under that statute. It further determined that the anti-discrimination provisions[8] of the state’s zoning act, G.L. c. 40A, § 3 (the Zoning Act), do not apply to invalidate the sprinkler requirements of G.L. c. 148, § 26H, because the Zoning Act targets discriminatory local land use and health and safety laws, created by municipalities, not the state. According to the Board, the sprinkler law provides protection to boarders in the event of a fire and is applied in a neutral manner. However, the Board did not determine whether enforcement of the sprinkler law under these circumstances constituted discrimination in violation of federal law, including the Fair Housing Act, 42 U.S.C. § 3601 (the FHA), stating that it was "not the proper forum" to make such a determination.


          I. Standard of Review

         A motion for judgment on the pleadings filed in accordance with Mass. R. Civ. P. 12(c) is treated like a motion to dismiss. Jarosz v. Palmer, 436 Mass. 526, 530 (2002). To survive a motion to dismiss, factual allegations contained in the complaint, taken as true, "must be enough to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         General Laws c. 30A, § 14(7), requires that the court "uphold an agency’s decision unless it is based on an error of law, unsupported by substantial evidence, unwarranted by facts found on the record as submitted, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." Massachusetts Sober Housing Corp. v. Automatic Sprinkler Appeals Bd., 66 Mass.App.Ct. 701, 704-705 (2006), quoting Massachusetts Inst. of Tech. v. Department of Pub. Utilities, 425 Mass. 856, 867-868 (1997). The court "owe[s] deference to the board’s reasonable interpretation if its own statute," as the Board "is an agency with expertise and experience in the technical aspects of fire safety." Massachusetts Sober Housing, 66 Mass.App.Ct. at 708.

          II. Positions of the Parties

          A. Plaintiffs’ Position

          Crossing Over and MASH seek judgment in their favor on two of the four counts contained in the complaint.[9] First, they seek judgment in the plaintiffs’ favor on appeal of the Board’s decision under G.L. c. 30A, § 14 (Count I). They assert that the Board’s decision "is unsupported by substantial evidence, and is whimsical, arbitrary, capricious, or made in bad faith," as they claim that the Board erred in finding that the Property is being operated as a "lodging house" and in "ignoring the applicability of G.L. c. 40A, § 3, case law interpreting the same, and the standard for requiring a reasonable accommodation under the Fair Housing Act."[10] According to the plaintiffs, the anti-discrimination provision of the Zoning Act applies to G.L. c. 148, § 26H, because it is a "health and safety law," and thus prevents the City from imposing the sprinkler law in a way that treats unrelated disabled persons living in a sober home differently from families living in a home.

          Second, the plaintiffs seek judgment in their favor on their request for injunctive relief under G.L. c. 40A, § 3, and the Fair Housing Act (FHA) (Count II). They assert that they sought and were denied a reasonable accommodation, a waiver of the application of the sprinkler law. They argued that the individuals living at the Property should be treated, not as a resident of a lodging house, but like residents in a single family for purposes of the Zoning Act and thus not subject to the sprinkler law requirement. Further, they argued, the Board’s failure to waive the sprinkler requirement in this instance resulted in a continuing violation of G.L. c. 40A, § 3. According to the plaintiffs, such violation "amounts to per se discrimination based on the disabilities of the sober home residents."[11]

          The remaining two counts of the complaint, which are not included in the plaintiffs’ motion for judgment on the pleadings, allege that the City is discriminating against the plaintiffs in violation of the FHA, G.L. c. 151B, and 804 CMR 2.00, et seq. (Count III), as well as the Americans with Disabilities Act (Count IV).[12]

          B. The Defendants’ Position

          The defendants assert that the Board was correct in determining that the state sprinkler law controls and is not subject to the anti-discrimination provision in the Zoning Act. They also contend that no reasonable accommodation is needed under the FHA, in the form of an exemption from the sprinkler law, because requiring the installation of sprinklers does not create a disability-related barrier; rather, the concern is a more general one about the availability of affordable housing. The defendants claim that the plaintiffs have not shown that the accommodation is necessary or reasonable, because they have not shown that the installation cost would prevent Crossing Over from continuing to operate at the Property. Finally, the defendants posit that if sprinklers are not required, the result would be at odds with the goals of fire safety and anti-discrimination laws oddly affording disabled persons less protection from fire in their home than if they were not disabled and living in a lodging home.

          III. A ...

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